A judgment pronounced in the absence of the accused is valid, and the trial court can issue a non-bailable warrant for execution of the sentence if the accused is not present.

ORAL ORDER

This Court, vide order dated 22nd February 2017, disposed of the main matter issuing certain directions. In para – 5 of the order, it has been observed that the applicant - original accused has preferred a criminal appeal before the Sessions Court, which is yet to be registered. It is pointed out that in fact, the criminal appeal has been registered and numbered.

With the above clarification, the Note is disposed of.

ORAL ORDER

1 The respondent No.2 – original first informant, although served with the notice issued by this Court, has chosen not to remain present before this Court either in person or through an advocate and oppose this application.

2 Rule returnable forthwith. Ms. Thakore, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondent No.1 – State of Gujarat.

3 By this application Article 227 of the Constitution of India, the applicant – original accused has prayed for the following reliefs:

“(17)(A) Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or directions quashing and setting aside the impugned order dated 07.10.2016 passed by the 4th Additional Chief Judicial Magistrate, Vadodara, passed below Exh. 66 (at Annexure­A hereto) and further be pleased permit the petitioner to suspend the sentence imposed upon the petitioner judgment and order dated 07.03.2015 passed by learned 10th Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.2996/2003 (at Annexure-A hereto) so that he can prefer appeal before the learned appellate Court in the interest of substantial justice;

(B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay further operation, implementation and execution of the impugned order dated 07.10.2016 passed by learned 4th Additional Chief Judicial Magistrate, Vadodara, passed below Exh. 66 (at Annexure-A hereto);

(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.”

4 It appears from the materials on record that the applicant herein has been convicted by the learned 4th Additional Chief Judicial Magistrate, Vadodara for the offence punishable under Section 138 of the Negotiable Instruments Act in the Criminal Case No.2996 of 2003. On the date of the pronouncement of the judgment and order of conviction, the applicant being the accused was not present. Since the applicant did not remain present before the Court on the date of the pronouncement of the judgment and no application was filed for suspension of substantive order of sentence under Section 389 of the Code of Criminal Procedure, 1973, the complainant preferred an application praying for issue of a non-bailable warrant. The Court concerned, acting on such an application filed by the complainant, issued a non-bailable warrant, which is made a subject-matter of challenge before this Court in this application.

5 I am told that later on, the accused i.e. the applicant herein preferred a criminal appeal before the Sessions Court, which is yet to be registered.

6 The issue raised in this application is squarely covered by a Division Bench decision in the case of Sharad Jethalal Savla vs. State of Gujarat and others [Criminal Miscellaneous Application No.19862 of 2015 decided on 14th November 2016]. I may quote the relevant observations made in the said judgment:

“15 Having heard the learned counsel appearing for the parties and having considered the materials on record, the following questions fall for my consideration:

I. Whether on account of the absence of the applicant accused herein on the date of the pronouncement of the judgment, the judgment would become invalid in view of the provisions of Section 353 of the Code of Criminal Procedure, 1973?

II. Whether the trial Court was justified in issuing a non-bailable warrant of arrest of the applicant accused herein having noticed